Contextualising the Patent Regime.

As a law student, I am constantly reminded to always contextualise any principles that I may learn as a part of my syllabus. Mechanical application is not just brushed aside by professors of law, and is abhorred by the more competent ones. What this means in much simpler terms, is that no principle can be applied across the board- one should always look at prevailing circumstances and apply the principle accordingly. In this light, I just read an article by Ms. Latha Jishnu in the Business Standard that I thought would be interesting to reproduce for our readers.

“Intellectual Property (IP) is still a strange beast in this country. People eye it rather warily, uncertain of its temperament (how hard will it bite or is it the clawing sort?) and the hidden threat in its still unfolding contours. To familiarise businessmen with this creature, industry organisations have been doing a fair amount of spadework – organising seminars, workshops and talks by visiting experts. It was only towards the end of 2006, however, that such events became high-profile, regular and more widespread.That’s when Dominic Keating of the US Patent & Trademark Office (USPTO) began functioning as First Secretary (IP) at the US embassy in Delhi. He put together a small team, one lawyer, IP specialist Sanjit Kaur Batra, and two assistants, and made it an evangelist station for spreading the light on IPR or intellectual property rights. He forged an alliance with the Confederation of Indian Industry to make IPR as much of a talking point with businessmen as VAT (value added tax), another much-distrusted concept some years ago, and appears to have succeeded to a large extent. He also began reaching out to sections of society one would normally not both with –schoolkids and housewives – to allow the idea of IPR to take root in a country which the developed world considers as rather lax on the issue.

The overarching theme of such conclaves, many of them organised in concert with prominent American universities, is that protecting IPR creates wealth and transforms economies but if you came to brass tacks it was invariably about combating piracy and counterfeit goods. But the US evidently has more long-term goals in view. In December of that year India and the US signed a memorandum of understanding to further cooperation on IP rights, the focus being on the training of personnel with a view “to strengthening the working of the IP systems in the two countries”.

Much of the effort has gone into training our patent examiners, an issue that is threatening to become a hot potato for Delhi. Over the past year and a half, the USPTO has provided long-term courses for about a dozen patent examiners, apart from week-long courses for sundry others from the customs officials, police and the registrar of copyrights to the judiciary on the technicalities of the American patent system. Even a judge of the Delhi High Court has been taken to the USPTO for a short-term course.

This is bound to raise hackles here. India’s patent examiners are, admittedly, ill-equipped and poorly qualified for their task, and the government has done little to set matters right. Instead, it appears to think that training courses in the most sophisticated patent offices of the world is a good way of overcoming the huge problem of human resources in India’s patent system. Apart from the US, India has signed agreement with the European Patent Office, and the governments of Japan and Switzerland among others for training our patent examiners. Legal experts and health activists, however, believe this is fraught with peril for a developing country that needs to keep public health concerns paramount.

They warn that the strict standards of patentability under India’s patent amendment Act of 2005 are not reflected in the laws of the developed countries where big pharma companies are based. A report of the National Institute for Healthcare Management on Changing Patterns of Pharmaceutical Innovation (2002) underlined this point when it said the majority of pharmaceutical patenting in the US is for new uses of old compounds. Section 3 d of the Indian Patent Act, on the other hand, strictly bars evergreening, the practice of lengthening the life of a drug patent through trivial innovations.

Interestingly, the US patent system is under attack at home and Congress along with huge swathes of American industry is debating a major overhaul of its processes.

IPR took on new form and meaning in 2005 when India reintroduced product patents after a gap of over 40 years –the Patent Act of 1970 recognised only process patents –but policymakers did little to prepare the country for the avalanche of patent applications that have inundated the four offices of the Controller General of Patents (CGP) since 1995. But leaving the training on substantive examination to countries whose laws are not in synch with ours is likely to create more litigation – the courts are already clogged with such cases –and add to the lack of clarity on what is patentable in India.

Training in the US and Europe has the potential of improving the technical skills of India’s patent examiners but there is a real concern that they will willy-nilly absorb standards of evaluation which are not relevant here. Clearly a double-edged sword.”

Perhaps this article may help our readers understand that even the US Patent Regime that is praised so often as being dynamic and progressive, may not be the right method for India. At least not yet.

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